I found out while applying for a refinance loan that I had an account placed in collections. The first time I heard about this account was when the mortgage broker was reviewing my credit file. I called the CA to inquire about it and they knew nothing other than I needed to send them money. So I called the original company to find out about it and, after a few long phone calls it seemed like an ex-girlfriend ran up the charges under my name. So I wait a week and, after hearing nothing from the CA (other than a few phone calls asking how I wanted to pay) I send the CA a validation letter. Two weeks later I hear from the CRA that the record has been deleted and they sent me an updated credit report. However, the collection still showed up on a myFico report two weeks after heaing from the CRA and I have not heard anything from the CA after over a month. So, I have them on several FDCPA violations (no notice within 5 days of first contact, no notification of my rights to dispute, no response to validation letter) and they did cause me to have to drop the refinance application so there are some actual damages. On the other hand the CRA says the record was deleted and sent me a report showing it as such. So, my question to the forum is, should I let it lie or take 'em to court? My latest feeling is to take 'em to court for the crap they put me through but I don't want to do that unless there's a reasonable chance that it'll be worth while. Thanks!
You have no proof they did not send you validation,they did not send you a 5 day notification or a right to dispute.A few posts back i asked the question why debtors are always told to send letters to oc's and ca's cmrrr when the oc's and ca's never have to and the response was that if they say they sent the debtor notices it is assumed that the oc's and ca's did because of their record of daily buisness practice or something called the mail box ruling.However the debtor is not allowed to use the mailbox ruling.Seems unfair but thats life i guess.Winning your case would be very hard considering this fact.
Are you sure the myFICO report was from a recently pulled CRA report, or could it be from an earlier pull that was not updated?
credit report I don't know if myFico updates in real time or not. I subscribed to them two weeks after I got the notice of deletion and updated credit report from Experian. But the myFico was the pre-deletion report. I should go back and look to see if there are any other entries on that report since the deletion. At this point, I'm in the "wait-and-see" phase (planning my next moves) on this dispute and another one. I was going to subscribe to a monthly CR service at the end of this month to see what's been updated or not and just to keep tabs on the report for a while.
Also I fail to see how he can claim damages. He didn't take out the loan so he won't be paying any increased interest costs because of the report. He can't prove actual damages but might be able to demand punitive if he had a case to start with. Whether or not he would get any punitives would be open to conjecture.
That's why I'm here I figured if my case can't stand the test of some internet advice, it probably wouldn't hold up under judicial scrutiny. The actual damage claim I had planned to come from the inablity to secure a refinance loan at a more favorable rate due to the -40 point hit this collection put on my FICO while I was trying to refinance last month. This dropped me into 584 from 626. Not exactly air-tight, I agree.
A consumer *CAN* use the same rulings; *IF* the consumer can provide proof that they *MAILED* something to the CA. Not just that they typed a letter, but that the letter was taken to the post-office and MAILED... With the companies it is presumed, unless you can show otherwise that if their computer shows that a letter was generated, it was sent. (A good reason that you want to memorialize postmark & received dates on all correspondence received. - if their system shows that a letter was generated on the 1st, and it wasn't postmarked until the 9th - you have proof that their system isn't as reliable as they would be purporting it to be. I've seen postmarks more than two weeks after the date of the letter, so it's not uncommon.) This is where the CERTIFICATE OF MAILING comes into play, while you can't show a date certain for RECEIPT; you do have definitive third-party proof that the letter was mailed. Other options, third-party facsimile machines, Kinko's, UPS Store, Staples, OfficeMax, local stores. You have definitive proof of sending and a definitive time that the letter was received. Another bonus, is that the fax has the potential to slip under-the-radar, just like an uncertified letter ("If they can't prove they sent it, we never got it" logic. Unfortunately with faxes, the logic backfires, as you have third-party proof that it was sent and received.)
Hmmmm..... I was just reading Mahon v. Credit Bureau of Placer County (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/9th/9717298.html) and if I'm reading the decision right, the 30-day time for validation starts when the Collection Agency sends their notice (even if it's to an incorrect address?) under the "if they sent it, we can assume you got it" presumption listed in the previous post. So, if they send a notice (to whatever address?) and they don't hear back within 30 days, then they can assume the debt is valid? So I find out about it 4 months later and ask for validation? I can hear their argument: "well we sent a notice and got not request for validation, so we assumed it to be valid." Is that correct? If so, what's the option? What am I missing?
Well I re-read this: 15 U.S.C. 1692g(a)(3) notice to consumer must contain language that the consumer has 30 days from receipt of the notice to dispute the debt. So, if I never received the notice, would the 30-day clock start ticking when I first find out about it? When I first contact the collection agency? Still digging....
Yes. The thirty day window would technically begin upon your request for validation, rather, when the collection entity received said request insofar as that was the initial communication. Moreover, they had five days from their receipt to send to you the nature of the debt, to whom it was owed, in what amount, etc., etc. I will presume they failed to do that. And for those who are herein chirping about "damages" . . . the FDCPA is strict liability. Damages are established under the statutory language and thus, actual damages are not required albeit a plus. The key to any FDCPA action is leveraging the costs that would be incurred via full-blown litigation. This often renders settlement inasmuch as no one wants to be on the hook for "reasonable attorney's fees" which in this field can range upwards of $350 per hour. Smart defense attorneys will offer Acceptance of Judgments at the hint of such a strategies but, fortunately, most collection entities prefer large firms where the average drone knows little of FDCPA litigation. Denny Crane and the name is on the door doesn't often garner the best results for these guys but, its good for the consumer.
I thought that the FCRA said that if a derogatory entry is removed and later reinserted, the CRA had to send a letter within 5-days. On 1/4 there was an entry that I disputed, on 1/26, the entry was removed, on 2/10, it was back and listed as verified as it was on 2/22. So in that scenario, I should have gotten a letter from Experian (the CRA), right? Also, each of the CRAs list a bunch of addresses under my name that are from my ex-wife and ex-girlfriend. When I tried to remove them, they said they couldn't because they were from public records? If they aren't my addresses, then are they willfully noncompliant in refusing my request for the deletion of them? Thanks!
You're right about the FCRA provision concerning notification of re-entry. However, what is your damage by that action alone? You're also correct about the addresses insofar as the FCRA simply states that "all" information on a consumer report may be disputed. Once again, what is your damage?
OK, I'm starting to piece this together (no thanks to the CA). Here's my side: Jan 4: find out I have a collection account (ouch) Jan 6: I file a dispute with CRA Jan 8: I get some information from OC over the phone but they don't send anything Jan 9: I talk to the CA over the phone and all they want to know is how I'd like to pay Jan 16: mail dispute letter to CA (CMRRR) Jan 19: they get it Jan 26: CRA pulls entry Feb 10: Review CR and collection is back on as "disputed by customer but verified (meets FCRA)" Feb 22: File new dispute with CRA Feb 24: Send another letter requesting verification Mar 12: receive copy of final bill from OC showing address of ex-girlfriend So far, nothing else from them Putting on my devil's advocate's hat, here's what I think their story would be (I have no idea becuase they haven't sent me anything, but piecing together the evidence I do have from the credit reports and final bill, here's what I'd bet happened): Jun 22, 2006: final bill sent to ex's house after she moved. My name is on the bill so it probably wasn't forwarded. Aug, 2006: Bill still unpaid Nov, 2006: Bill goes to collections Nov, 2006: CA sends out FDCPA letter to old address of ex - No reply within 30-some days: they assume it's valid and report it to the CRA some time in Dec. Jan 19, 2006: They get my letter Jan 26, 2006: They pull the TL from the CR pending investigation Feb (something between 1-10), 2006: they get confirmation from the OC, and mail it to the address on file: i.e. the old address of my ex. I'm just guessing, because I didn't get it even though my current address was on the dispute letter). Feb 22, 2006: I file another dispute w/ CRA Feb 28, 2006: They receive my 2nd letter. So, from their perspective, they've done everything right and I'm just another debtor trying to duck out of paying now that I haven't been able to continue to avoid them. Clearly that's not my view. I've never lived at the address on the account and from talking to the ex, she says that she tried repeatedly to change the address on the account and get the account in her name to no avail so she finally closed the account incurring an additional fee. But, back to the bottom line for the legal eagles: if the CA has done everything right in terms of their communications, except, of course, sending everything to an incorrect address, is there still an FDCPA violation or two? Rereading "Mahon v. Credit Bureau of Placer County" would lead me to believe that that case doesn't apply. In Mahon, they lived at the address to which the communications were sent but said the Defendant couldn't prove receipt (which they didn't have to). In my case the CA had a completely incorrect address (well, until they got my letter, anyway). At this point, I'm willing to settle this and I have a check from the ex to pay the final bill (she might hate me, but she's very good about paying her bills), but I'm not going to rush out and give the CA any money until: a) they at least respond to a letter and send me something that looks like validation b) guarantee in writing that they'll remove this from my CR Also, if I pay, can I still sue for FDCPA violations (if there were any)? Should I sue first and pay later? Vice versa? Thanks! The whole thing is the result of the customer service of the OC being unresponsive (not that that has any legal bearing, but it sure hacks me off).
Is this actually your account? Did you open the account in your name? Did you pay off and close the account? If it is your account, is the amount in collection accurate, or do you know? If it is not accurate, or you don't know, you would dispute and request validation regardless of whether they sent some letter to someone else's address. If you only found out about the debt on your CRs, you would include in your letter that you had never received any communications from them. Sending an initial FDCPA notification to someone else's address should not start YOUR 30 day period to request validation timely, since FDCPA states that that starts when you RECEIVE their letter. Their documents indicate they did NOT send that letter to your address, and in fact they confirmed that by apparently still not sending validation in response to your letter to your actual address. If you now have their "validation", is it correct? If it is not correct, how far would they want to depend on their already erroneously sent communications, and just a "disputed" notation on your reports, if you wanted to challenge them for erroneous reporting under FCRA? If you don't have their validation, do you want to push to get it?
I believe it is. It was opened in 1999 and then split off to my ex in 2004. That's why it took some digging to figure out. Yes, originally, and apparently it stayed that way when it was split off, in spite of numerous attempts to change it. The account is closed and has been paid up to the final bill which is what is in collections. I haven't received anything from the CA, however, the copy of the final bill that I received from the OC matches what is reported on the credit report. I did. and I did. I'm just guessing that's what happened given that I haven't received anything from them through the mail. I don't have validation from the CA. Just a copy of the final bill from the OC that was originally sent to the wrong address in June 2006. Well, so far I've sent them two letters with no reply. Next is an invitation to visit me in court if things keep going this way. It's hard to pay when they won't talk to you.
What is this? A utility or phone bill on moving out that stayed connected but you had called to request that it be transferred into the name of your ex-girlfriend who stayed?
Something like that. It's a cell-phone bill. The contract was split in 2004 becuase the ex went to GSM phones and they used a different accounting system (it didn't make any sense to me but my guess is that it was the result of some acquisition or something). Anyway, after a separate contract was cloned off of my original contract the ex changed the address and contact information on the new, GSM contract so I forgot all about it. In fact, I thought that we had both gone to the phone store and transferred the responsibility to her but, apparently not. But this is all from information I've gotten from the OC (the cell-phone company) after 3-months of phone calls. I'm still waiting to hear from the CA to see what, exactly, they are billing me for. I have no problem paying for it if: - they provide the validation to show that this is, in fact, about the same contract (it probably is, but I want, and I have the right to get, that in writing). I can't say that this debt is or is not my responsibility until I get something from the CA. The OC said it's not their problem any more and that I need to talk to the CA. This is hard, if they won't answer any letters. - they'll remove this entry from my credit report (had the OC changed the address as requested or the ownership as we both requested, none of this would have ever happened). Of course, if I wanted to be picky, I could claim that I have no oblication to pay it because the OC said they could not provide any copy of a contract to show who signed for it. I'm reluctant to go there...just yet, anyway. But, I'm still wondering if settling up with the CA would make it harder to sue for FDCPA violations (no notice within 5-days of first contact, no validation received, continued collection without validation) but, again, the strength of these charges stand on whether or not the CA has to send them to the correct address or if they can just send them off to whomever. I haven't found any case law that addresses this situation, yet.
There isn't much case law because many such cases are in small claims without any record, or because they end up being settled. They are not generally worth appealing. The fact that the address was changed on the account shows that some change was in fact processed. If the account was "split", with you continuing to receive your bill, that would support that the split off account with the changed address was handled improperly, as there would be no reason to change only its address, while continuing to send you a bill on your account at your address. There would be no reason to request that an account be split and then sent to two different addresses but still kept in the same name. Although the cell phone company says they can't do anything, the problem is still of their creation, and you might still bring pressure on them, either by BBB complaint, AG complaint, or if you have a good consumer reporter in your area, either with a newspaper or TV. They have the most interest in avoiding the appearance of shoddy business practices.
Well, yesterday, no letter from the CA (big surprise). Sent a complaint to the state AG and the intent to sue to the CA. Hence, I'm cramming in the last-minute legal research before drafting the the complaint. One question... If the suit is likely to be settled out of court, is there any advantage to filing in any particular [eligible] court? e.g. Small-Claims, Superior, U.S. District...? I just want to know which form to use and how much filing fee to save up
We have a cool Attorney General Update: I got a letter from the Attorney General, yesterday, that included a response from the collection agency. It's nice to see that they can repsond in writing...and pronto! They rec'd the letter from the AG on 4/10 and send a response the same day. If they'd provided that sort of service three months ago, I wouldn't have an entry on the docket. Oh well. Too bad for them. There were a couple of interesting things in the letter from the collection agency: 1) when they received my requests for validation, they simply forwarded the requests to the OC to have them send the final bill. That doesn't seem to follow the letter of the FDCPA: In my case having the OC send the final bill without any reference to the CA, confused the matter. I had been in contact with the OC to obtain a final bill and so, because there was no indication on the final bill that it was from, or in response to, the CA, I couldn't know that it was the same account as the CA was collecting on or that it had been sent in response to my request for validation, especially because it was not sent by the CA. 2. Their log provides evidence that they continued collection activities before sending, or having the OC send, the validation information to the consumer. Their log indicates that they sent all the correspondance to an address at which I had never lived until even after receiving my validation letter with my correct address. They didn't correct it until the second request for validation, so they continued collection activities (i.e. reporting in my credit report) for at least almost two months before having the OC send a final bill to the correct address. 3. Reading their log of the collection account is interesting, even if I haven't deciphered all their codes. While they may or may not record your voice, they take notes on every call. They aren't very detailed, but they contain the main points (i.e. those that have to do with you paying them or admitting responsibility). So, now that I have validation of the debt, I'm happy to pay the debt, (for deletion of the trade line, of course) but I wanted to poll the net.wisdom to see if I'm forgetting anything. I still have a court date for the FDCPA violations (and now I have more evidence) so I'm wondering if paying the debt will have any effect on the lawsuit. It shouldn't because I'm not disputing the debt, just that their actions were not in compliance with the FDCPA. Thoughts? Oh, and Thanks for all the info and help, so far!
